Filed 10/12/17 P. v. Martinez CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE, Plaintiff and Respondent, v. MARIA MARTINEZ, Defendant and Appellant.

H043095 (Santa Clara County Super. Ct. No. C1496585)

I. INTRODUCTION

Defendant Maria Martinez appeals from a trial court order denying her motion to withdraw her plea of no contest to violating Penal Code section 186.22, subdivision (a)[1] (active participation in a criminal street gang). Defendant contends that the trial court abused its discretion because she entered the plea under duress and is “arguably factually innocent.”

As we find no abuse of discretion, we affirm the trial court’s order.

II. FACTUAL AND PROCEDURAL BACKGROUND

A.The Complaint

On November 3, 2014, defendant was charged by first amended complaint with active participation in a criminal street gang (§ 186.22, subd. (a)). Eight codefendants[2] were charged with the same offense, as well as one or more additional offenses, including conspiracy to transport a controlled substance with a gang enhancement.

Defendant’s bail was initially set at $1 million. She filed a motion to reduce bail to $10,000 or for release on “supervised own recognizance,” and in early December 2014, the trial court reduced her bail to $750,000. During the preliminary examination that same month, defendant’s bail was further reduced to $100,000.

B.The Preliminary Examination

The preliminary examination of defendant and her eight co-defendants was conducted over the course of several days between mid-December 2014 and late January 2015. The sole testifying witness was a detective in the jail crimes and gang investigations unit of the Santa Clara County Sheriff’s Office, as well as a task force officer for an FBI violent gang task force. He testified as a percipient witness and as an expert witness in criminal street gangs and in narcotics recognition and sales. Relevant to defendant, the evidence at the preliminary examination included the following.

Nuestra Familia is an ongoing criminal organization. The top of its structure includes the “high command,” which is comprised of three “generals” in Pelican Bay State Prison. Beneath the high command are the captains, or carnales, and then Nuestra Raza. Regimental commanders may oversee a prison or jail facility, or a street regiment. Street-level Norteño gang members, meaning individuals who do not have status within the structure, are expected to recognize the leadership of Nuestra Familia.

Law enforcement was involved in an investigation to identify members who were operating as part of a Nuestra Familia street regiment in San Jose or Santa Clara County. A Nuestra Raza member who was previously involved in a street regiment in Santa Clara County became a confidential source for law enforcement and provided information about Nuestra Familia.

The confidential source had been reporting to Martin Martinez, a carnal with Nuestra Familia in federal prison. Defendant was married to Martin Martinez’s brother, Angel Martinez, who was also a carnal with Nuestra Familia. Angel Martinez was in jail in Santa Clara County.

The confidential source explained to law enforcement that Martin Martinez had been giving him Nuestra Familia directives from prison. Law enforcement recorded the confidential source’s phone calls in 2014. In one call, Martin Martinez told the confidential source to contact an individual because that individual had a good relationship with the Norteño criminal street gangs and could help organize those gangs underneath the regiment. The confidential source and that individual thereafter had phone conversations discussing the Nuestra Familia street regiment and other gang-related matters.

The confidential source also had communications with defendant in 2014, including by phone and in person. In the beginning, defendant “was reaching out” to the confidential source to discuss issues that her husband was having in jail. Later, the conversations turned to scheduling a time for the confidential source to drop off a “kite” for defendant. A kite is a microwritten communication that is typically smuggled in or out of a custodial facility. The kite, which originated from Martin Martinez in federal prison, was obtained by the confidential source from Shawn Vernon Lee, who had been released from the same federal prison.

In the kite, Martin Martinez refers to his and other people’s positions in the organization and who is and is not in charge. He indicates that his brother, Angel Martinez, needs to be recognized as a carnal. He further states that Larry Lucero is to be respected but that Lucero has no “say-so” and is not to be given any financial support. Martin Martinez warns people who are “stepping out of line,” he exerts his authority over San Jose, and he indicates that he has been given the authority to handle the regimental affairs in San Jose by one of the three generals of Nuestra Familia. The kite “attempt[s] to mitigate the ongoing issues” Martin Martinez’s brother has and “tell[s] the people that are having issues with his brother to knock it off and to recognize the [carnal] status.”

On May 30, 2014, the confidential source met with defendant and gave the kite to her. He also provided the instructions that Lee had told him, which was for defendant to take the kite to her husband in jail. Defendant indicated that she would do so. During this meeting, the confidential source and defendant also talked about an ongoing dispute between defendant’s husband and Lucero. At some point, Lucero had “green lit” Angel Martinez. A “green light” is when one person with authority “puts . . . a hit out or the okay to hit another person with violence.” Defendant indicated that she knew about the dispute, that she had written at least two letters on the subject to a carnal in Nuestra Familia, and that she was concerned because she did not think the carnal had received the letters.

Defendant visited her husband in jail the next day, and the visit was recorded by law enforcement. Defendant and her husband engaged in coded communication during the visit. Defendant also passed the information that was contained in the kite.

Within a month, defendant contacted the confidential source by phone and told him that she had letters for him that she had received from her husband. Defendant then met the confidential source in person and gave him two handwritten letters. One letter was addressed to “Gordas.” Gordas was defendant’s moniker. The letter referred to a Father’s Day card, among other things, and was seemingly a letter from a husband to a wife. Law enforcement did not know if there was code in it. The second letter was addressed to “Franny,” and law enforcement believed it was a code letter from Angel Martinez to the confidential source. The confidential source indicated that the code word “Franny” was used for him because he used to date a girl named Franny. In the letter, Angel Martinez requests that the confidential source work with a particular person, who is a close friend of Angel Martinez, to help resolve a situation where someone is “talking bad” about someone else.

At the preliminary examination, the detective/gang expert testified that he did not know if defendant understood the meaning of the “Franny” letter. Nevertheless, defendant did understand that it was a letter that her husband wanted her to give the confidential source, and the letter was coded. The detective/gang expert acknowledged that with respect to one or both letters, it was possible that defendant was “just doing what she’s told” and that she did not know what she had.

A search warrant was executed on October 30, 2014, and law enforcement found two letters inside defendant’s truck. The letters were from defendant’s husband and were addressed to a code name. That same name had been used in the recorded jail visit between defendant and her husband. Law enforcement believed, based on the content of the letters and a recorded meeting between defendant and the confidential source, that the letters were for a particular person in Nuestra Familia. In the letter, defendant’s husband “is looking for guidance and basically say[s] he’s an extended hand of that person.”

Although women do not hold a “status” within the gang, they are “extremely important” and are used as “resources” to do things, including to pass communications. Communication between incarcerated members of Nuestra Familia and members on the outside is vital to the organization. The Nuestra Familia leadership is incarcerated in the jail and prison systems. For the leadership to maintain control over the organization and to continue receiving drugs, money, and cell phones while in custody, the leadership must maintain lines of communication with people on the street. If Nuestra Familia cannot exert their control over members on the street, give directions, sanction membership, issue orders to people who are not in good standing, and remove “the bad seeds” to protect the organization, the organization “will crumble.” The “moving of written and coded communications” is part of “what enables the [Nuestra Familia] to continue to function. It supports the overall criminal organization.” At the preliminary examination, the detective/gang expert opined that defendant is an associate of the Norteño criminal street gang.

At the close of the preliminary examination, defendant was held to answer for active participation in a criminal street gang (§ 186.22, subd. (a)). The court denied defendant’s request for release on “supervised O.R.”

On February 5, 2015, an information was filed charging defendant with the same offense. The 16-count information also named the same eight codefendants.

C.The Plea

On February 10, 2015, defendant appeared with appointed counsel and entered a no contest plea to the charge with the understanding that (1) she would be placed on probation with various terms and conditions, including six months in jail, and (2) she would not be charged in any indictment based on the same police reports regarding her contact with the confidential source between January 1 and October 30, 2014.

Before defendant entered her plea, defense counsel stated: “Your Honor, [defendant] and I have had long conversations about this case over the time that I’ve represented her, and I do not recommend that she enter into this plea. She’s entering into it over my objection. But this is a choice that she gets to make, not me.”

Defendant executed a written advisement of rights, waiver, and plea form. In the form, defendant indicated her understanding that she would be pleading guilty or no contest to the charge of active participation in a criminal street gang (§ 186.22, subd. (a)), and that the maximum sentence for that charge was three years in prison. She also acknowledged that she had a full opportunity to discuss with her counsel the facts of her case, the elements of the charged offense, any defenses she may have, her constitutional rights and waiver of those rights, the consequences of her plea, and anything else she thought was important to her case. Defendant further acknowledged that no one had made any threats or used any force against her, her family, or loved ones, to convince her to plead guilty or no contest. She also agreed that there was a factual basis for her plea based on her discussions with her counsel about the elements of the offense and any defenses she may have. On the form, defendant indicated that she was “freely and voluntarily” pleading no contest.

The trial court asked defendant several questions before she entered her plea. Defendant confirmed that she understood everything on the written plea form and that she had no questions. The court asked, “Are you doing this just for yourself and not to help anybody else?” Defendant responded, “For myself.”

The court also asked defense counsel whether she was “confident” that defendant understood each of the constitutional rights being waived, and that defendant was in the “right state of mind to intelligently decide to enter a change of plea here today.” Counsel responded affirmatively. Although counsel objected to defendant’s change of plea, counsel stated that “it’s her right” and “I respect that.”

After defendant entered the no contest plea, the trial court asked the parties whether they stipulated to a factual basis for the plea. Defense counsel stated: “I’m agreeing that [defendant] has a right to make these decisions, despite anything that I may believe about the case. She’s making this decision. I would submit to the Court – submit on review of the Court file to the Court, to determine the factual basis on her plea.” The prosecutor stipulated to a factual basis based on the police report, the preliminary examination transcript, and the recordings in the case. The court stated that it found a factual basis based on the parties’ discussions in chambers, where the parties had discussed “in great detail” the evidence. The court further determined that defendant had been properly advised of the charges, elements, possible defenses, and consequences of the plea; that she was fully informed of her constitutional rights; and that she had made a knowing, intelligent, free, and voluntary waiver of those rights. Defendant was released on her own recognizance that day.

D.The Sentencing

On March 13, 2015, the trial court suspended imposition of sentence and placed defendant on probation for three years with various terms and conditions. The probation conditions included a six-month jail term and registration as a gang member. Defendant was granted custody credits, and her jail term was deemed served.

E.The Motion to Withdraw the Plea

On July 20, 2015, more than five months after she had pleaded no contest, defendant filed a motion to withdraw her plea, contending that she had entered her plea under duress and not of her own free will.

Defendant contended that the evidence presented at the preliminary examination indicated that she was communicating with her husband, who was in jail, and with a law enforcement witness. There were three recorded phone calls between defendant and the law enforcement witness, defendant received a jail kite from him during one encounter, and she gave him two letters during another encounter. There were also two letters found in defendant’s car. Defendant argued that there was no mention of criminal activity in any of the communications.

Defendant contended that she had never been in custody before and that she was placed in solitary confinement. She was concerned for the well-being of her three children, who were living without a parent. Her 18-year-old son was taking care of his younger two siblings, as well as newborn twins with his girlfriend. She was afraid and overwhelmed with worry and concern for her children and grandchildren’s well-being and safety. The reduced bail of $100,000 was still too high for her family to arrange.

Defendant contended that, after the preliminary examination involving her and other defendants and upon her counsel’s advice, she declined the prosecutor’s offer of probation with jail time. Two weeks later, however, her custody and personal situations were so bad that she believed she had no other choice than to accept the plea offer. Having spent enough time in jail to satisfy a sentence, and under duress to enter a plea agreement, defendant entered a plea against her counsel’s advice on February 10, 2015.

In late winter 2014 or early spring 2015, a grand jury proceeding was held and at least 24 defendants were indicted. Defendant was not included in the indictment. Sometime after April 27, 2015, a section 995 motion was filed by two defendants on the ground that the active participation in a criminal street gang offense must be set aside because the grand jury was not presented with evidence sufficient to support a finding of probable cause. The motion was granted as to those two defendants.

Defendant contended that she was “similarly situated” to those two defendants and that she could have made the same arguments had she not entered a plea under duress in February 2015. Defendant requested that she be allowed to withdraw her plea, and that she be allowed to remain out of custody on supervised own recognizance “while she litigates her case exercising her own free[ ]will and making decisions without being influenced by duress and situational force.”

F.The Prosecution’s Opposition to the Motion

The prosecution contended that defendant played an active role in Nuestra Familia’s gang operations. Law enforcement’s confidential source, a gang member, received a kite from Lee, who was incarcerated with Martin Martinez, defendant’s brother-in-law and a former Nuestra Familia street regiment commander. The kite was passed to defendant, who agreed to pass the information to her husband, who was also an incarcerated former Nuestra Familia street regiment commander. Defendant visited her husband in jail the next day and was seen using hand signals to communicate with him. On a second occasion, defendant told the confidential source that she had a letter for him from her husband. During a subsequent meeting, she gave the confidential source the letter, which was a coded message directing him to work with another person who was later indicted for his activities with the street regiment.

Defendant and eight others were charged by complaint. Defendant was held to answer and pleaded no contest to active participation in a criminal street gang. According to the prosecution, those who had not pleaded, plus 17 more defendants, were subsequently indicted by the grand jury for the same or related conduct. The information against the remaining defendants was superseded by the indictment. Two of the defendants prevailed on section 995 motions.

The prosecution contended that defendant had made factual assertions in her motion without any evidence, such as being harassed by correctional officers. The prosecution further argued that, although defendant undoubtedly felt pressure to plead, she failed to show that it was any more pressure than that faced by every other defendant. The prosecution also contended that defendant’s reevaluation of the strength of the case based upon events that occurred after her plea did not constitute good cause for withdrawal of the plea, nor could the court speculate about the evidence that might have been gathered and presented to the grand jury if defendant had not pleaded.

G.The Hearing on Defendant’s Motion

On September 25, 2015, a hearing was held on defendant’s motion to withdraw her plea. The judge presiding at the hearing was the same judge who had taken defendant’s no contest plea in February 2015, and who had placed her on probation in March 2015. At the hearing on the motion defendant testified as follows.

Defendant was arrested on October 30, 2014. At the time, she was providing for her three sons, ages 18, 16 and 12, who were all living at home. In addition, defendant was helping care for the one-month-old twins of her 18-year-old son and his girlfriend. The twins were born “early” and were “really small so they needed a little help.” Defendant’s husband was in custody and there was no other adult living in the home.

At the time of defendant’s arrest, her brother was with her children at home. Defendant testified that after her arrest, she “had to give custody” of the two younger sons to her older son. She did not think he could take care of them. Her oldest son had just become a father and he had to take on the responsibilities of his younger brothers. According to defendant, the children did not have money. Defendant felt she was “stuck in a position where [she] couldn’t do anything for them.” She also learned while she was in custody that her two younger sons were “acting out” and that the youngest had to be put in counseling as a result. Defendant testified that her family did not have the money to pay the bail amount, even when it was reduced to $100,000.

Defendant was in lockdown for 23 hours a day. She had never previously been arrested and she cried every day while in custody. She had never been away from her children, she was very concerned for them and their well-being, and she thought about them all the time while in custody. Defendant was able to make phone calls to family members and had a few visits from them.

Defendant testified that initially she did not know why she was in jail. The correctional officers asked her about her husband and said things such as, “Yeah, sure, you don’t know anything.” She felt the correctional officers were belittling her and making her feel “dumb.” This went on regularly but “slow[ed] down” towards the end of her time in custody. Other inmates tried to ask her questions about her husband’s case, but she never talked to them. They claimed her husband “did this . . . did that,” and they believed she was in custody for selling drugs and that she was probably a “shot caller.” She testified that her husband’s case had nothing to do with her, and that she found the experience in custody frustrating and overwhelming. She was sick while in custody and put in a request for medical attention, but she was never seen.

During the preliminary examination in December 2014 and January 2015, an offer was made for defendant to “plead guilty and get out of custody.” Defendant “didn’t want to take” the plea deal because she “felt like it was too much to take a felony and probation and to have to register.” In addition, after the preliminary examination, her counsel advised her that there were some motions that could be brought. Her counsel was also aware that there was going to be an indictment later and that “there was really nothing that [defendant and counsel] could do at the moment.” Even if defendant filed a motion, “it wouldn’t have done any good because the indictment would be forthcoming and [defendant would] be back where [she was] even if [the motion] was successful.”

When defendant was arraigned after the preliminary examination, she had a discussion with counsel “about what [her] possibilities were with [regard] to the facts of the case and how it might come out.” Her counsel thought defendant might win a motion to get the charge dismissed and advised her not to plead to the charge. Defendant understood counsel’s advice but decided to plead no contest anyway. She knew that by pleading she would be giving up the right to bring the motion to dismiss the charge, and that she would be giving up other rights including the right to a jury trial.

Defendant testified that her overriding concern at that point was her children because she knew they were struggling. Defendant had 90 days or more in custody and, in view of the six-month offer, she could be home with her children. Defendant testified that she made the decision to settle the case for that reason, and not because she was guilty of anything. She knew it could be another six months or a year before the case could be resolved in the way her counsel had discussed with her. Defendant testified that she did not want to wait because she needed to be home with her children, who were struggling and were without money. She testified that if she waited that long, “who knows where they’d be by the end.” Defendant testified that if her children were grown and on their own, she would have stayed in custody and fought the case. Defendant testified that she didn’t make that decision based on any different information or anything new that had come up. Defendant knew that counsel did not support her decision. Defendant testified that the only reason she pleaded no contest was because she was afraid for her children’s safety and well-being and she “couldn’t see any other way to preserve their safety and their well-being.”

After defendant testified, defense counsel argued that the case involved duress and not buyer’s remorse. Counsel contended that defendant pleaded under duress because she was worried for the safety of her children. Counsel claimed that she had talked about a section 995 motion with defendant and that counsel felt confident the motion might succeed. Counsel stated that the motion was successful by two co-defendants who were similarly situated to defendant. According to counsel, that fact showed there was good reason for defendant to not plead to the charge, and that defendant, in pleading, had not simply made a balancing decision that she may be convicted later in the long run. According to counsel, “[w]e knew everything we needed to know before she pled. She pled simply to protect her children.”

In response to questions by the trial court, defense counsel stated that the section 995 motions by the other defendants were granted in June, and that defendant filed her motion to withdraw her plea in July. Defense counsel acknowledged that after the section 995 motions were granted, she (counsel) “felt even more strongly that this was a plea that should never have been entered.” Counsel subsequently contacted defendant and asked her whether she wanted to proceed with the motion based on the conversations they had. They discussed the fact that another court had granted the motion that defendant had given up in order to be with her children. Counsel admitted that “this was my legal recourse to try and put her back in place where I thought all along that she should be.”

The prosecution responded that defendant was not under any more or less pressure than anyone else in her position with minor children. The prosecution argued that defendant made the plea while represented by counsel, who explained the reasons not to plead. Defendant understood the plea and chose to go forward with it on her own free will.

H.The Trial Court’s Ruling

After the parties submitted the matter, the trial court denied the motion. The court concluded that defendant had failed to meet her burden of showing good cause by clear and convincing evidence. In reaching its determination, the court stated the following.

The court found the timeline of the case and the way things developed “rather interesting.” Defendant was arrested “sometime before the new year.” Defense counsel thereafter wanted to litigate the case and believed she had some motions that would get the case dismissed. Counsel also felt that “even if she didn’t have those motions, perhaps she could prevail at trial.”

The court observed that “[a]n early offer was made to [defendant] of [] six months[’] county jail, presumably, because she didn’t have any record.” The prosecution “wanted to get her on a gang registration, probation and search and seizure and all of the things a first[-]time offender would receive.” “However, if she were to accept the offer, she would have to still stay in jail for a longer time period, because she didn’t have 90 days in of the 180 they were asking for.” The court observed that the offer was extended again after the preliminary examination.

The court noted that defense counsel wanted to bring motions and continue litigating the case. Approximately 15 days later, however, defendant expressed her desire to plead no contest, accept probation, get credit for time served, and get out of jail.

The court stated that “what is significant, of course, is the only thing that had changed, at that point, is that she now had the 90 days in and she had been held to answer at the preliminary hearing . . . . And now she was able, if she pled, to get out of jail as opposed to a month or two earlier which she would not have gotten out of jail. And so, she wanted to take advantage of that situation.

“It’s clear that she, like all defendants, did not like being in jail, did not like being away from her family and her children. And what’s significant is, in fact, things had not gotten worse in the jail. She said, in fact, they were improving a little bit at the end. The guards were no longer bothering her.”

“[T]hings were similarly at home as they were a week . . . earlier, a month earlier, two months earlier and there wasn’t . . . anything imminent that was about to happen that was in the home environment. It’s just it appears that she now was going to credit out and that’s why she decided, . . . ‘I can be out of here. I don’t really want to fight these charges. I’d rather plead no contest, get out of jail and be back home with my family and out of these jail conditions which are so restrictive of one’s freedom.’

“She pled in February, and in March she came back and was sentenced in the case, and there was no mention of any motion to withdraw the plea at the time of her sentencing.” The court observed that it was not until later, after two of her co-defendants, who defense counsel claimed were similarly situated to her, prevailed on section 995 motions that defense counsel contacted defendant. The court stated that defense counsel “clearly . . . was very concerned” that defendant had pleaded “under circumstances that she would not have normally pled and, certainly, in [defense counsel’s] view, made the wrong decision.

“And [defense counsel], who never gives up, wanted to make sure that she made a motion to withdraw the plea because . . . the circumstances that [defendant] was under may qualify as duress and she wanted to make that one last ditch effort to attempt to save [defendant] . . . even though she had done everything she could to advise her not to plead.

“. . . t was [defense counsel] that contacted and that’s an unusual situation, of course; it’s usually the client contacting. In fact, in every situation I can remember, it’s the client contacting an attorney, if not the attorney that they had and saying, ‘I want to withdraw my plea.’ In this case, it was the attorney contacting the client and saying, ‘Hey, I think we might have a motion to withdraw the plea and these 995s have been granted and I was right and I need to undo this injustice.[’] And I think . . . it was all in belief that she was under some type of legal duress when she had entered the plea, but I think it’s significant that the attorney was the one who contacted the client. The client had stated to the judge at the time of the plea that there was . . . no one forcing her to take the plea. She was doing it for herself and wanting to do this.

“And that’s why I don’t have the usual transcript attached. There was nothing wrong with the taking of the plea. She said she understood everything. . . . I usually have a copy of the transcript where there was some hesitation or something, perhaps.” The court found these to be the “interesting aspects” of the case.

The court believed that “defendant, who is now a probationer and out of custody, looked at her situation and analyzed it and with the counsel of [her defense counsel] and decided that, perhaps, . . . she had nothing to lose by now bringing this.” The court believed that defendant “must have felt pretty convinced that she was going to stay out of custody to relitigate this case; else, she wouldn’t have proceeded.”

The court explained that the issue was whether there was good cause by clear and convincing evidence, and specifically whether there was duress and a lack of exercise of free will. The court indicated that defendant’s case was “no different than any other situation except for this 995 issue and the fact that the defense counsel wanted to encourage her to bring this motion.

“This was a woman like many of the defendants or all of the defendants the first time they go to jail, who are put in jail conditions and if there [are] gang allegations and safety issues, . . . there are jail conditions that are more restricted and less restricted. And it was a condition where I believe that she did find these conditions restrictive though not deplorable in any way.

“And I believe that she did miss her family very much and wanted to be home with her children and her grandchildren and that entered into her decision not to fight the case and, perhaps, end up with as much as the maximum of three years in the case and what could be a long drawn out situation, and she decided to exercise her judgment in pleading and accepting the terms of probation which she felt she would be successful in completing.

“Again, there was . . . nothing imminent. There were no beatings that were going to occur to her. There was nothing life threatening or earth shattering at home. It was the same condition as a few months earlier when she had gotten the offer. The only difference was she had the time in, at this point, and because of it, the defense has failed to show any clear and convincing evidence to this court that she was under legal duress, duress that would be considered unusual and . . . something that would qualify as legal duress by clear and convincing evidence.

“On the other hand, she was, basically, just the opposite. She was just like every other defendant in her situation. She was somebody who was in a condition she wasn’t used to and very restrictive and she was concerned about her family and concerned about staying in jail for a longer period of time and she wanted to get out of jail, accept responsibility . . . and just move on with her life and . . . except for what she says, I have no other evidence that it wasn’t as much for accepting responsibility and her wanting to move on with her life as her just wanting to get out and plead no contest even though she didn’t do anything, so to speak.

“So, if the standard were different, a preponderance or something else, it could have gone a different way, but I certainly don’t see any clear and convincing evidence that this plea was any different than any other defendant . . . that was similarly situated as [her].”

Defendant filed a notice of appeal on November 13, 2015, and obtained a certificate of probable cause. (§ 1237.5; Cal. Rules of Court, rule 8.304(b).)

III. DISCUSSION

Defendant contends that the trial court abused its discretion in denying her motion to withdraw her plea because (1) she entered her plea under duress and there is not substantial evidence to support the trial court’s contrary determination, and (2) she is “quite arguably factually innocent.”[3] The Attorney General contends that no abuse of discretion has been shown by defendant.

A.[i]General Legal Principles Regarding a Motion to Withdraw a Plea

Section 1018 allows the trial court to grant a defendant’s request to withdraw a plea of guilty or no contest “before judgment . . . for a good cause shown.” This section must be “liberally construed . . . to promote justice.” (Ibid.)

Good cause exists to withdraw a plea when the defendant was operating under a factor that overcomes the exercise of the defendant’s free judgment. (People v. Cruz (1974) 12 Cal.3d 562, 566.) “[F]actors overcoming [a] defendant’s free judgment include inadvertence, fraud or duress. [Citations.]” (People v. Huricks (1995) 32 Cal.App.4th 1201, 1208 (Huricks).) However, a plea may not be withdrawn simply because the defendant has changed his or her mind (People v. Nance (1991) 1 Cal.App.4th 1453, 1456), or because the plea was made reluctantly or unwillingly by the defendant (Huricks, supra, at pp. 1208-1209; People v. Hunt (1985) 174 Cal.App.3d 95, 103-104 (Hunt); People v. Urfer (1979) 94 Cal.App.3d 887, 892-893). Further, a defendant fails to demonstrate duress when “[n]othing in the record indicates [the defendant] was under any more or less pressure than every other defendant faced with serious felony charges and the offer of a plea bargain.” (Huricks, supra, at p. 1208.)

“The defendant has the burden to show, by clear and convincing evidence, that there is good cause for withdrawal of his or her guilty plea. [Citations.]” (People v. Breslin (2012) 205 Cal.App.4th 1409, 1415-1416.) In ruling on a motion to withdraw a plea, the trial court may consider the court’s own observations of the defendant, as well as “take into account the defendant’s credibility and his [or her] interest in the outcome of the proceedings. [Citations.]” (People v. Ravaux (2006) 142 Cal.App.4th 914, 918 (Ravaux).) “In determining the true facts the trial court is not bound by the uncontradicted statements of the defendant.” (People v. Brotherton (1966) 239 Cal.App.2d 195, 201 (Brotherton).) Where the evidence is contradictory, the trial court is “entitled to resolve the factual conflict against” the defendant. (Hunt, supra, 174 Cal.App.3d at p. 104.) “Where two conflicting inferences may be drawn from the evidence, it is the reviewing court’s duty to adopt the one supporting the challenged order. [Citation.]” (Ibid.)

We review the trial court’s denial of a motion to withdraw a plea for abuse of discretion. (People v. Fairbank (1997) 16 Cal.4th 1223, 1254 (Fairbank).) In making that determination, we adopt the trial court’s factual findings if supported by substantial evidence. (Ibid.) We “ ‘will not disturb the denial of a motion unless the abuse is clearly demonstrated.’ ” (People v. Wharton (1991) 53 Cal.3d 522, 585 (Wharton).)

B.Analysis

On defendant’s claim of duress, it was for the trial court to determine the credibility of defendant’s claim. The court was in the best position to evaluate whether defendant entered her no contest plea voluntarily. (Ravaux, supra, 142 Cal.App.4th at p. 918.) The court was not required to accept defendant’s testimony in support of her claim, and was entitled to resolve factual conflicts against her. (Brotherton, supra, 239 Cal.App.2d at p. 201; Hunt, supra, 174 Cal.App.3d at p. 104.) The court’s observations of defendant at the time she entered her no contest plea can be part of the substantial evidence supporting the conclusion that defendant’s plea was knowing, intelligent, and voluntary. (See Fairbank, supra, 16 Cal.4th at p. 1254.)

The record reflects that at the plea hearing, defendant confirmed that she understood everything in the written plea form and that she had no questions. In the plea form, defendant acknowledged that she had a full opportunity to discuss with her counsel the facts of her case, the elements of the charged offense, any defenses she may have, her constitutional rights and waiver of those rights, the consequences of her plea, and anything else she thought was important to her case. Defendant further acknowledged that no one had made any threats or used any force against her, her family, or loved ones, to convince her to plead no contest. She also agreed that there was a factual basis for her plea based on her discussions with her counsel about the elements of the offense and any defenses she may have. On the form, defendant further indicated that she was “freely and voluntarily” pleading no contest.

Significantly, prior to defendant pleading no contest, the court asked defendant, “Are you doing this just for yourself and not to help anybody else?” Defendant responded, “For myself.” (Italics added.) Defense counsel likewise confirmed to the court that counsel was “confident” that defendant understood each of the constitutional rights being waived, and that defendant was in the “right state of mind to intelligently decide to enter a change of plea here today.” Although counsel objected to defendant’s change of plea, counsel stated, “it’s her right” and “I respect that.”

Nothing in the record of this hearing reflects that defendant was under duress due to family concerns or that she was pleading no contest because of any such duress. As the court later stated at the hearing on defendant’s motion to withdraw her plea, defendant indicated at the time of her plea that “there was . . . no one forcing her to take the plea. She was doing it for herself and wanting to do this.” The court observed that, as a result “the usual transcript” of the taking of the plea was not “attached” to defendant’s motion to withdraw her plea because there had been “nothing wrong with the taking of the plea.” In sum, the record of the plea hearing, including the statements by defendant and defense counsel, support the conclusion that defendant’s no contest plea was entered voluntarily and without any factor overcoming the exercise of her free judgment.

Moreover, as the trial court stated at the hearing on defendant’s motion to withdraw her plea, the timeline of the case was “rather interesting the way things developed.” Defendant did not accept the early plea offer. The court explained that if she had accepted the early offer, “she would have to still stay in jail for a longer time period, because she didn’t have 90 days in of the 180 they were asking for.” The court observed that it was not until a month or two later, after defendant already had 90 days in custody and after she had been held to answer at the preliminary examination, that she decided to plead no contest. The court found it “clear” that defendant, “like all defendants, did not like being in jail, did not like being away from her family and her children.” However, the court found it “significant” that “things had not gotten worse in the jail” and “things were similarly at home as they were a week . . . earlier, a month earlier, two months earlier and there wasn’t . . . anything imminent that was about to happen that was in the home environment.” The court found that at that point, defendant “was going to credit out and that’s why she decided, . . . ‘I can be out of here. I don’t really want to fight these charges. I’d rather plead no contest, get out of jail and be back home with my family and out of these jail conditions which are so restrictive of one’s freedom.’ ” The court also found it “significant” that counsel was the one who contacted the client about withdrawing the plea, rather than the client initiating contact with counsel.

We determine that the court did not abuse its discretion in denying defendant’s motion to withdraw her plea. Based on (1) the record of the taking of the plea, including defendant’s and defense counsel’s confirmation that defendant was entering the no contest plea “[f]or [her]self” and was in the “right state of mind” to do so, (2) the timeline of events, including defendant’s acceptance of the plea offer at a time when there was no significant change in her jail conditions or family circumstances, but she had just been held to answer and would be released immediately under the plea deal, and (3) the trial court’s credibility determination regarding defendant’s testimony at the change of plea hearing, defendant fails to “ ‘clearly demonstrate’ ” an abuse of discretion in the court’s denial of her motion to withdraw her plea. (Wharton, supra, 53 Cal.3d at p. 585.)

We are not persuaded by defendant’s contention that there is not substantial evidence to support the trial court’s determination that she did not plead under duress. Conflicting inferences may be drawn as to whether defendant entered her plea under duress in view of (1) the record of the taking of the plea, and (2) the timeline of events. Moreover, the court could observe defendant at the plea hearing and when she testified at the hearing on the motion to withdraw her plea, which enabled the court to evaluate defendant’s credibility concerning her claim of duress. In view of this record, the court’s factual finding of no duress is supported by substantial evidence. (See Fairbank, supra, 16 Cal.4th at p. 1254.)

We are similarly unpersuaded by defendant’s contention that she is “quite arguably factually innocent” and that therefore “this court should permit her to withdraw her plea in the interests of justice.” First, defendant does not set forth all the evidence presented at the preliminary examination regarding her activities with respect to Nuestra Familia. Second, she does not discuss the elements of the gang participation offense of section 186.22, subdivision (a), let alone provide an explanation of why her activities do not meet those elements. Third, even assuming defendant is factually innocent of that offense, she acknowledges that “factual innocence is not one of the grounds specified in section 1018 for a plea withdrawal.”

According, we determine that the trial court did not abuse its discretion in denying defendant’s motion to withdraw her plea.

IV. DISPOSITION

The September 25, 2015 order denying defendant’s motion to withdraw her plea is affirmed.

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